“Law is reason, free from passion.” – Aristotle
And then there were eight. The passing of Justice Scalia in February 2016, left the Supreme Court in something of a dilemma. There are four left leaning Justices and four right leaning. Therefore, the chances of tie votes, an equal split in opinions, would become very real. Whenever that occurs, the rule of law will have been compromised; the conservative philosophy will have negated the liberal philosophy and vice versa. And the Constitution is the worse for it.
As this is written, it doesn’t look like a replacement for Justice Scalia will be moving into his office any time soon. Some say it might be more than a year before a new Justice becomes available; once the new president is elected in November 2016.
But even when Scalia’s replacement joins the Court, there will still be a problem. If a Democrat is in the White House, then the new Justice will likely be more liberal. In that event, the Court will be five to four favoring the left, just reversing the current majority. If a Republican becomes president, then the Court’s majority of the right merely stays where it was before Scalia’s death.
Of course, over the four year or possibly eight year term of the new president, other members will leave the court. Anthony Kennedy, a Reagan appointee, is 79, Ruth Bader Ginsburg at 83 and Stephen Breyer at 77, were both appointed by Clinton. Depending on the party of the president when any of these justices leaving the court, the political influence could make the court more liberal or more conservative.
It has always bothered me that a single person, a Supreme Court Justice, can swing a Supreme Court decision that, in turn, could affect 320 million people. That is the ultimate tyranny of the minority. And unless the voting of the Court continues as a simple majority, that condition will continue.
My remedy for the simple majority rule is to replace it with a supermajority requirement. And I would set that supermajority at three-fourths of the members – 75 percent. After all, the Supreme Court is literally the court of last resort. And since the Justices are not elected by the people and have lifetime tenure, and since they have become increasingly divided politically, it seems to me that opinions of the Court ought to have concurrence of more than a simple majority. Among other things, a supermajority would also inspire confidence that the question at hand has been closely vetted and not just political.
The notion of a supermajority was incorporated into the Constitution to be used under certain circumstances These are actions they thought too important for a simple majority. For example, any proposed Amendments require ratification by a three-fourths majority of the states. To the extent opinions of the Court sometimes effectively amend the Constitution, I believe that critical threshold should apply to the Court as well.
In addition, a supermajority two-thirds approval of both Houses is needed to send proposed Amendments to the states for ratification, and to override a presidential veto. A two-thirds supermajority of the Senate is needed to ratify treaties and to conduct a trial following a bill of impeachment from the House. Either house can expel one of its members by a two-thirds vote. And if the president becomes unable to discharge the powers and duties of his office, then a two-thirds vote of both Houses authorizes the Vice President to continue those powers and duties the same as an Acting President.
Appeals from district courts to federal circuit courts are usually decided by majority of three members of the circuit court with jurisdiction over the district court. But the majority of three is two. So, again there is a supermajority – two-thirds – concurring on the opinion. Of course, sometimes the 3-judge panel may want to the refer the controversy to the full court en banc. Each circuit has between six and 28 judges. And the decision is by a simple majority.
In our federal trial courts, juries are required to render unanimous verdicts in both criminal and civil cases – the ultimate supermajority! This is testament to meeting the high standard of “beyond a reasonable doubt,” maybe even a “moral certainly.” Those are attributes we should expect from Supreme Court opinions.
A number of states already have some variation of a supermajority rule in their courts. They include Louisiana, Nebraska, Arizona, Utah, and Virginia. In 1919, the North Dakota Constitution was amended to require four out of their five justices (80 percent) to invalidate a state law; a provision that is still in effect.
This three-quarters supermajority would also help to de-politicize the court and minimize so-called “judicial activism.” It may also put a little more pressure on the Justices when they grant certiorari for the cases they want to decide given the level of agreement needed for a final disposition. That is, the controversy at issue must be a clear and consequential question for the Constitution. (They should be doing this anyway. And they should stop rendering “narrow” opinions!) If nothing else, a supermajority would help minimize the controversy that seems to arise in a 5 – 4 decision.
But more importantly, I believe the change to a supermajority would restore the Court to the vision set for it by the Founders. As Alexander Hamilton wrote in Federalist No. 78:
” . . . the judiciary, from the nature of its functions, will always be the least dangerous [of the executive and legislative branches] to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
This inherent weakness of the judiciary was not lost on President Andrew Jackson. When the Supreme Court ruled in favor of the Cherokee Nation (Worcester v. Georgia by 6 – 1, or 83.3%), effectively eviscerating the “Indian Removal Act of 1830” that Jackson had fought Congress so hard to get, he supposedly barked, “They have made their decision. Now let them enforce it!”
On the other hand, President Eisenhower stepped up to his enforcement duty. In 1957, when Arkansas Governor Orval Faubus called out the National Guard to keep Little Rock’s school system “separate but equal,” President Eisenhower dispatched the 101st Airborne Division to remind the governor of the Supreme Court’s 1954 desegregation decision in Brown v. Board of Education (voting 9 – 0) and to disabuse him of any notions he may have of noncompliance.
Those are just a couple of cases where the supermajority has compelled compliance by the mere force of its near unanimity. Of course, the Court has issued opinions with concurrence ranging from a simple majority to a unanimous agreement. Some of the more important cases since the founding of the nation, along with the votes by the justices, were listed by “USA Today.” And they include:
• Marbury v. Madison, 1803 (4-0 decision) — Established the Supreme Court’s power of judicial review over Congress.
• McCulloch v. Maryland, 1819 (7-0 decision) — Established the federal government’s implied powers over the states.
• Dred Scott v. Sandford, 1857 (7-2 decision) — Denied citizenship to African American slaves.
• Plessy v. Ferguson, 1896 (7-1 decision) — Upheld “separate but equal” segregation laws in states.
• Korematsu v. United States, 1944 (6-3 decision) — Upheld internment of Japanese Americans during World War II.
• Brown v. Board of Education, 1954 (9-0 decision) — Separating black and white students in public schools is unconstitutional.
• Gideon v. Wainwright, 1963 (9-0 decision) — Criminal defendants have a right to an attorney even if they cannot afford one.
• New York Times v. Sullivan, 1964 (9-0 decision) — Lawsuits based on libel or defamation must show intent or recklessness.
• Miranda v. Arizona, 1966 (5-4 decision) — Prisoners must be advised of their rights before being questioned by police.
• Loving v. Virginia, 1967 (9-0 decision) — Invalidated state laws prohibiting interracial marriage.
• Roe v. Wade, 1973 (7-2 decision) — Women have a constitutional right to an abortion during the first two trimesters.
• United States v. Nixon, 1974 (8-0 decision) — President cannot use executive privilege to withhold evidence from criminal trial.
• Regents of the University of California v. Bakke, 1978 (5-4 decision) — Upheld use of race as one of many factors in college admissions.
• Bush v. Gore, 2000 (5-4 decision) — No recount of the 2000 presidential election was feasible in a reasonable time period.
• Lawrence v. Texas, 2003 (6-3 decision) — Struck down state laws that prohibited sodomy between consenting adults.
• District of Columbia v. Heller, 2008 (5-4 decision) — Citizens have a right to possess firearms at home for self-defense.
• Citizens United v. Federal Election Commission, 2010 (5-4 decision) — Corporations and unions can spend unlimited amounts in elections.
• National Federation of Independent Business v. Sebelius, 2012 (5-4 decision) — Upheld the mandate that most Americans have health insurance.
• Shelby County v. Holder, 2013 (5-4 decision) — States and localities do not need federal approval to change voting laws.
• United States v. Windsor, 2013 (5-4 decision) — Federal government must provide benefits to legally married same-sex couples.
• Obergefell v. Hodges, 2015 (5-4 decision) — Same-sex marriage is legalized across all 50 states.
Note that, with exception of Miranda v. Arizona, the major decisions by the Warren Court of the 50’s and 60’s were unanimous. It’s clear too that, since the Bush v. Gore decision, all but one of the major cases was decided by a simple majority 5 – 4. Politics, it seems, has raised its ugly head in Supreme Court deliberations over the last 60 years or so.
In fact, polls show that the the public approval of the Supreme Court has dropped over the last 15 years; going from 59% in 2000 to 49% by the end of 2015. But job approval of the Court goes to extremes between political parties. 80% of Republicans were happy with the court in 2000, probably because of the Court’s decision that effectively made George W. Bush president. But the GOP’s approval rating crashed to 18% in 2015, probably because of the Court’s opinion on gay marriage and upholding the Affordable Care Act (Obamacare.) Of course, the approval ratings by the Democrats were the mirror image of the Republicans with 42% in 200 rising to 76% in 2015.
Now, I don’t know the best way to deal with situations where the Court is unable to reach the three-fourths hurdle. I suppose it would be the same as a tie vote or a hung jury. The issue could be sent back to the lower courts with or without requests for additional information. Where the case involves a federal statute, it could be sent to Congress for further disposition.
In consideration of the above, I’m not so naïve as to think this proposal has anything more than a snowball’s chance of going anywhere. But we the people are in agreement that our government is dysfunctional. So, if this idea ever becomes workable, then perhaps at least one branch of government can better perform its function.
This is a revised and expanded version of an Op-Ed by the Author that appeared in the Joplin Globe on February 9, 2016.